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EXHIBIT 2
06/20/01
ASSET PURCHASE AGREEMENT
THIS ASSET PURCHASE AGREEMENT (this "Agreement") is made as of this 20th
day of June, 2001, by and among (i) ERBIA NETWORK, INC., a Delaware corporation
("Seller"), (ii) ERBIA, INC., a Delaware corporation ("EI"), (iii) FGC, INC. a
Delaware corporation ("FGC"), (iv) GLOBALINX, INC., a Delaware corporation
("Buyer"), and (v) ORION TECHNOLOGIES, INC., a Nevada corporation ("Orion").
WHEREAS, Seller is in the business of providing telecommunications
services as an Integrated Communications Provider, including long distance,
local toll and Internet services (the "Business");
WHEREAS, Seller is a wholly-owned subsidiary of EI and EI has incurred
significant liabilities on behalf of the Business;
WHEREAS, FGC is a telecommunications consulting firm owning or leasing
some of the premises or assets such as office space, computer equipment and
furniture being sold, assigned or transferred to Buyer;
WHEREAS, Seller, EI and FGC desire to sell, assign and transfer to Buyer,
and Buyer desires to acquire from Seller, EI and FGC, certain of the assets of
the Business, and Seller, EI and FGC desire to assign to Buyer, and Buyer
desires to assume, certain liabilities of Seller, EI and FGC relating to the
Business, all in accordance with the terms and subject to the conditions set
forth in this Agreement.
NOW THEREFORE, in consideration of the foregoing, of the mutual covenants
and agreements herein contained, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Sale of Assets. At the Closing (as defined in Section 9 hereof),
Seller shall sell, assign, transfer and convey to Buyer, and Buyer shall acquire
from Seller, all right, title and interest of Seller in and to those assets of
Seller as defined and set forth on Exhibit A-1 attached hereto (the "Seller
Assets"). In addition, at the Closing, (a) EI shall sell, assign, transfer and
convey to Buyer, and Buyer shall acquire from EI, all right, title and interest
of EI in and to those assets of EI as defined and set forth on Exhibit A-2
attached hereto (the "EI Assets") and (b) FGC shall assign to Buyer, and Buyer
shall acquire from FGC, all right, title and interest of FGC in and to those
assets of FGC as defined and set forth on Exhibit A-3 attached hereto (the "FGC
Assets" and, collectively with Seller Assets and EI Assets, the "Assets").
2. Assumption of Liabilities. At the Closing, Buyer shall assume and
agree to pay, discharge and perform (a) those liabilities and obligations of
Seller set forth on Exhibit B-1 attached hereto (the "Seller Assumed
Liabilities"), (b) those liabilities and obligations of EI set forth on Exhibit
B-2 attached hereto (the "EI Assumed Liabilities")
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and (c) those liabilities and obligations of FGC set forth on Exhibit B-3
attached hereto (the "FGC Assumed Liabilities" and, collectively with the Seller
Assumed Liabilities and the EI Assumed Liabilities, the "Assumed Liabilities").
Except for the Assumed Liabilities and except as otherwise set forth in this
Agreement, Buyer shall not assume any other liabilities or obligations of
Seller, EI or FGC, whether absolute, contingent or otherwise.
3. Purchase Price. The purchase price payable to Seller by Buyer for
the Assets shall consist of the following:
(a) At the Closing, Buyer shall deliver or cause Orion to
deliver to Seller three hundred thousand (300,000) shares of the Common Stock,
par value 0.01 per share ("Common Stock"), of Orion (the "Initial Shares"). Of
these shares a total of hundred and seventy five thousand (175,000) shares of
the Common Stock of Orion will be held in reserve by Orion on behalf of Seller
and transferred, per request from the Seller, to the agents as identified in
Section 10(e) and certain Seller creditors for Seller's settling of other
outstanding liabilities.
(b) If, based on the average closing price of a share of the
Common Stock of Orion for the last ten (10) trading days immediately preceding
the six (6)-month anniversary of the date of Closing, the value of the Initial
Shares (the "Six Month Stock Value") is less than One Million Dollars
($1,000,000), then Buyer will deliver or cause Orion to deliver to Seller that
number of shares of Common Stock of Orion equal to (i) One Million Dollars
($1,000,000) minus the Six Month Stock Value, (ii) multiplied by fifty percent
(50%), (iii) divided by the average closing price of a share of Common Stock of
Orion for the ten (10) trading days immediately preceding the six (6)-month
anniversary of the date of Closing (the "Additional Six Month Shares").
(c) If Orion is required to deliver the Additional Six Month
Shares and if, based on the average closing price of a share of Common Stock of
Orion for the ten (10) trading days immediately preceding the one (1)-year
anniversary of the date of Closing, the value of the Initial Shares and the
Additional Six Month Shares is less than One Million Dollars ($1,000,000) (the
"One Year Stock Value"), then Buyer will deliver or cause Orion to deliver to
Seller that number of shares of Common Stock of Orion equal to (i) One Million
Dollars ($1,000,000) minus the One Year Stock Value, (ii) divided by the average
closing price of a share of Common Stock of Orion for the ten (10) trading days
immediately preceding the one year anniversary of the date of Closing (the
"Additional One Year Shares" and, collectively with the Initial Shares and the
Additional Six Month Shares, the "Shares").
(d) In addition to the foregoing consideration set forth in
this Section 3, beginning on the fifteenth (15th) day of the fourth (4th) month
following the date of Closing and on the fifteenth (15th) day of each month
thereafter through and including the fifteenth (15th) month after the Closing
(i.e., twelve (12) total months), Buyer will pay as a commission override (the
"Override") to Seller three percent (3%) of the billed monthly revenue for the
prior month attributable to Seller's customer base (but excluding those
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accounts set forth on Exhibit C) (the "Additional Purchase Price" and,
collectively with the Shares, the "Purchase Price").
(e) By its signature to this Agreement, Orion agrees that it
shall be fully liable, as a primary co-obligor, for the payment of (i) the
Purchase Price to Seller and (ii) the Assumed Liabilities, and that it shall
take all actions as shall be necessary to assure that all portions of the
Purchase Price are paid to Seller as and when due, including, without
limitation, the issuance and delivery to Seller of the Shares and all portions
of the Assumed Liabilities are paid to third parties as and when due.
(f) All references in this Agreement to the Initial Shares, the
Additional Six Month Shares, the Additional One Year Shares and the closing
price of a share of Common Stock of Orion shall be adjusted, as appropriate, to
take into account any stock split, stock dividend, or other change in the
capital structure of Orion.
(g) At Closing, certain Promissory Note (the "Promissory Note")
dated 20th of April, 2001 by the Seller to Orion at the sum of Two Hundred Fifty
Thousand dollars ($250,000) shall be replaced with a new Promissory Note as set
forth on Exhibit D
4. Representations and Warranties of Seller, EI and FGC. To induce
Buyer and Orion to enter into this Agreement and to consummate the transactions
contemplated by this Agreement, Seller, EI and FGC, jointly and severally,
represent and warrant to Buyer and Orion, as of the date hereof and as of the
Closing Date, the following:
(a) Seller, EI and FGC each is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
(b) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been
authorized by all requisite corporate action on the part of each of Seller, EI
and FGC. Each of Seller, EI and FGC has full corporate power, authority and
legal right to enter into this Agreement and to consummate the transactions
contemplated hereby, subject to any required consents of governmental agencies
and third parties contemplated by this Agreement. This Agreement has been duly
executed and delivered by each of Seller, EI and FGC and is a legal, valid and
binding obligation of each of Seller, EI and FGC enforceable against each of
Seller, EI and FGC in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights in general.
5. Representations and Warranties of Buyer and Orion. To induce
Seller, EI and FGC to enter into this Agreement and to consummate the
transactions contemplated by this Agreement, Buyer and Orion, jointly and
severally, represent and warrant to Seller, EI and FGC, as of the date hereof
and as of the Closing Date, as follows:
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(a) Buyer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and Orion is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Nevada.
(b) The execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby have been
authorized by all requisite corporate action on the part of each of Buyer and
Orion. Each of Buyer and Orion has full corporate power, authority and legal
right to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
of Buyer and Orion and is a legal, valid and binding obligation of each of Buyer
and Orion enforceable against each of Buyer and Orion in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights in general.
(c) Exhibit E attached hereto sets forth, with respect to
Orion, its Certificate of Incorporation (the "Charter") and the number of
authorized, issued and outstanding shares of its capital stock. Orion shall
transfer to Seller the rights in the Common Stock of Orion as set forth in the
Charter. All of the Shares to be issued to Seller hereunder will, upon their
issuance, (i) have been duly authorized and validly issued and be fully paid and
non-assessable, (ii) be issued in compliance with all applicable state and
federal laws and (iii) not be issued in violation of any preemptive rights or
rights of first refusal of any person or entity.
6. Status of Assets. Buyer and Orion acknowledge and agree that the
Assets are being sold on an "As Is, Where Is, with All Faults" basis, and except
as otherwise expressly provided herein, all warranties (whether written or oral,
expressed or implied) in regard to merchantability, fitness for a particular
purpose, sufficiency, condition, design, operation, maintenance, value or
otherwise with respect to the Assets are expressly excluded. In furtherance of
the foregoing, and anything in this Agreement to the contrary notwithstanding,
Buyer and Orion represent and warrant that they have entered into this Agreement
on the basis that:
(a) They have conducted or will conduct their own
investigations of the Business and the title to the Assets;
(b) They have and shall be deemed to have (i) inspected the
Assets, satisfied themselves with respect to the Assets and all matters and
things connected with or in any way related to the Assets and (ii) relied
entirely upon their own investigations and inspections in entering into this
Agreement and accepting the Assets;
(c) The Assets are being purchased as they will exist at their
location at the time of the Closing, and no adjustments to the Purchase Price or
modification of any term or provision of this Agreement or any of its Exhibits
shall be made or allowed to Buyer or Orion due to (i) the condition, value,
quantity or quality of the Assets at the Closing or (ii) any change in
condition, value, quantity or quality of the Assets;
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(d) Seller, EI and FGC have made no representations,
warranties, statements or promises and have not agreed to any condition with
respect to the Business or the Assets, whether statutory, express or implied,
oral or written, legal, equitable, conventional, collateral or otherwise, all of
which are expressly excluded, as to:
(i) title, including, without limitation, the existence,
validity, recordation, enforceability or priority of any mortgages, charges,
liens, encumbrances, security interests, claims or demands of whatsoever nature
or kind affecting or in any way relating to any or all of the Assets;
(ii) the existence, condition, merchantability,
description, fitness for any particular purpose or use, suitability, durability,
marketability, condition, quantity or quality thereof of any or all of the
Assets; or
(iii) any other matter or thing whatsoever in respect of
any or all of the Business or the Assets.
(e) Buyer and Orion represent that they have had full and
complete access to and have inspected and are fully familiar with the Business
and the Assets and hereby covenant and agree, pursuant to the terms of this
Agreement, to accept the same "As Is, Where Is, with All Faults" at the time of
the Closing. Seller, EI and FGC have not made, and are not willing to make, any
representations or warranties with respect to the Business or the Assets,
including, but not limited to, representations or warranties as to the physical
condition of the Assets, the compliance of the Assets with applicable
regulations or permits, the income derived, or potentially to be derived from
the Business or the Assets, sufficiency of the Business or the Assets for any
purpose, the expenses to be incurred, or potentially to be incurred, in
connection with the Business or the Assets, the operation of the Business or the
Assets or taxes due and owing, or potentially due and owing in connection with
the Assets or the conduct of the Business, except as otherwise provided herein.
7. Buyer's and Orion's Conditions to Closing. The obligations of
Buyer and Orion to proceed to Closing hereunder are subject to the fulfillment
of each of the following conditions at or prior to Closing (any or all of which
may be waived at any time by Buyer and Orion):
(a) Seller, EI and FGC shall have executed and delivered to
Buyer a general assignment, xxxx of sale and assumption agreement in the form of
Exhibit F attached hereto (the "Assignment and Assumption Agreement");
(b) Seller shall prior to Closing initiate the process of
transferring Seller's customer base to the Buyer. After the Closing, Seller
shall continue to carry the customers until Buyer has obtained the necessary
approvals in each applicable jurisdiction and such transfer can be completed in
each such jurisdiction. The Buyer shall obtain such approvals through its state
compliance counsel, Xxxxxxx, Lennon & Xxxxxx, who shall also be engaged to
accomplish the transfer at the Buyer's expense. The list of
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the Seller's certifications and approvals is as set forth on Attachment 3. Buyer
and Seller agree that Seller shall make their best efforts to effect the
completion of the transfer as soon as reasonably practicable after the Closing.
Once the transfer has been completed the Seller shall to the extent practicable
and within twenty-four (24) months from Closing attempt to sell its block of
state certificates to the highest bidder. The proceeds of this sale is to be
used to pay off the debt owed under the Promissory Note payable to the Buyer.
8. Seller's, EI's and FGC's Conditions to Closing. The obligations of
Seller, EI and FGC to proceed to Closing hereunder are subject to the
fulfillment of each of the following conditions at or prior to Closing (any or
all of which may be waived at any time by Seller, EI and FGC):
(a) Buyer and/or Orion shall have delivered to Seller the
Initial Shares;
(b) Buyer shall have executed and delivered to Seller the
Assignment and Assumption Agreement;
(c) In connection with Orion's agreement to satisfy certain
obligations of Seller and EI due and owing to Qwest Communications, Inc.
("Qwest"):
(i) Qwest shall deliver a release of all claims against
Seller and EI, in the form of Exhibit I attached hereto.
(ii) Qwest shall permit Orion to transfer its customers
under Orion's Globalinx Reseller Agreement to Seller's account with Qwest.
(iii) Orion, Qwest and Seller shall mutually agree to
issue a press release with respect to the matters set forth in this Section
8(c).
(d) Buyer and Orion shall at Closing compensate Xxxx Xxxxxx
("Dunhem") with One Hundred Thousand (100,000) shares of Common Stock of Orion
for his continuing to be a guarantor for contracts as set forth on Exhibit J-1
and One Hundred Thousand (100,000) shares of Common Stock of Orion for his
consulting support as set forth in 8(d). Orion shall provide a guarantee to
Dunhem as set forth on Exhibit J-2 and shall agree to provide Dunhem with
current financial information on the financial condition of Orion and Buyer as
reasonably requested by Dunhem for as long as Dunhem provides a personal
guarantee under any of the contracts as set forth on Exhibit J-1. The intent of
the Buyer is to make arrangements so that Dunhem is no longer required to be a
personal guarantor. Should such arrangements eliminating the need for Dunhem's
personal guarantee not be completed on or before one hundred and eighty (180)
days following the Closing then Buyer will deliver to Dunhem an additional Fifty
Thousand (50,000) shares of Common Stock of Orion;
(e) Buyer shall have agreed to hire those employees of Seller
listed on Exhibit K attached hereto at the compensation level listed on such
Exhibit K; and
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(f) Buyer shall have entered into a Consulting Agreement with Xxxx
Xxxxxx in the form of Exhibit L attached hereto.
9. Closing. Closing on the transactions contemplated by this
Agreement (the "Closing") shall take place no later than three (3) business days
after the conditions set forth in Section 7 (except as otherwise set forth in
Section 7(b) hereof) and 8 have been satisfied or waived, and in no event later
than June 30, 2001, unless the parties hereto mutually agree to a later date
(the "Closing Date"). The parties hereto covenant and agree in good faith after
the Closing to perform all other obligations that have not been satisfied by
them on or before the Closing Date.
10. Covenants.
(a) During the period between the execution of this Agreement
and the Closing Date, in order to expedite an orderly combination of customers,
products and services to be offered by Buyer, Seller and Buyer shall form a
management committee consisting of Xxxxxxx Xxxxx, Xxxxxxx Xxxxx and their
delegates to manage the operations and to merge the resources of Seller and
Buyer.
(b) For each of the first three (3) months after the Closing,
Seller shall from the accounts receivables being thirty one (31) days or older
from the date of the standard billing cycle at or immediately before the Closing
Date that are being retained by Seller (the "Retained Accounts Receivable")
collected by Seller pay to Buyer the lesser of the following amounts
(i) Seventy-Five Thousand One Hundred and Forty Three
Dollars ($75,143) in the first month,
(ii) Thirty Six Thousand Three Hundred and Thirty Six
Dollars ($36,336) in the second month
(iii) Seven Thousand Eight Hundred and Thirty Two ($7,832)
in the third month
or the amount of entire Retained Accounts Receivable collected by Seller during
such month, such amounts to be remitted by Seller to Buyer on the twenty-ninth
(29th) day of the month following each of such first three (3) months. The
process and procedure for the handling of the collection of receivables and the
treatment of received amounts in the SunTrust Lock Box shall be as set forth on
Exhibit M.
(c) Buyer shall permit Seller and EI to use the Blue Spring
billing system currently being utilized by the Business for at least ninety (90)
days after Closing and Buyer shall provide access to Seller and EI to such
system during such ninety (90)-day period to enable Seller and EI to track and
perform collection activities of its retained accounts receivable. The process
and procedure for the handling of the collection of receivables and the
treatment of received amounts in the SunTrust Lock Box shall be as set forth on
Exhibit M.
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(d) Seller shall use its best efforts to transfer its entire
customer base to Buyer as defined in Section 7 (b) as soon as reasonably
practicable after the Closing. Until such time that all customers have been
transferred Seller shall continue to maintain its licenses and certifications
and carry customers based on a co-billing arrangement. Seller shall until the
completion of the transfer ensure that the appropriate certificates are in good
standing and adher to all related regulatory requirements.
(e) Seller and EI shall use its best efforts to transfer its
entire agent base to Buyer at Closing, and Buyer and Orion shall assist Seller
and EI in settling any commission claims existing as of the Closing Date. Seller
and EI shall settle any claims as an example as set forth on Exhibit N.
(f) Buyer shall permit Seller, EI and FGC to occupy one office
with furniture and computer system at the McLean, Virginia location and one
office with furniture and computer system at the Margate, Florida location, as
necessary, for at least ninety (90) days after Closing in order to permit the
activities as set forth on Exhibit M.
(g) After the Closing, Orion shall reserve a sufficient number
of shares of its Common Stock to enable Orion to issue to Seller the Additional
Six Month Shares and the Additional One Year Shares in accordance with Sections
3(b) and 3(c) hereof.
(h) Seller and EI shall have provided to Buyer satisfactory
evidence that Seller and EI have with best effort entered into arrangements to
settle and/or satisfy their obligations with respect to the note holders and or
vendors set forth on Exhibit H attached hereto.
(i) Seller, EI and FGC shall cooperate with Buyer and Orion to
conduct an audit for the purpose of completing a timely public filing of the
transaction contemplated herein.
(j) Buyer shall have the right to use the "erbia" and "erbia
Network" names in their business and marketing for a period of twelve (12)
months from the Closing.
11. Termination. This Agreement may be terminated prior to the
Closing as follows:
(a) at any time, by mutual written agreement of all the parties
hereto;
(b) by either Buyer or Seller, upon written notice to the
other, at any time, if the other is in breach or default of its respective
covenants, agreements or other obligations set forth in Sections 7, 8 or 10
hereof; or
(c) by either Buyer or Seller, upon written notice to the
other, if the Closing shall not have occurred by June 30, 2001 for any reason
other than a breach or
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default of the covenants, agreements or other obligations of the party giving
such termination notice.
12. Confidentiality.
(a) Seller, EI and FGC recognize and acknowledge that they have
in the past, currently have, and in the future may possibly have, access to
certain confidential information relating to the Business, such as lists of
customers, operational policies, and pricing and cost policies, that are
valuable, special and unique assets of the Business. Seller, EI and FGC agree
that they will not, after the Closing Date, disclose confidential information
with respect to the Business to any person or entity, for any purpose or reason
whatsoever (except to authorized representatives of Seller, EI and FGC and to
counsel and other advisers, provided that such advisors (other than counsel)
agree to the confidentiality provisions of this Section 12(a)), unless (i) such
information becomes known to the public generally through no fault of Seller, EI
or FGC, (ii) disclosure is required by law or the order of any governmental
authority under color of law, (iii) Seller, EI and FGC reasonably believe that
such disclosure is required in connection with the prosecution of a lawsuit
against Buyer and Orion, or the defense of a lawsuit against Seller, EI or FGC
or for certification or state licensure purposes or (iv) Seller reasonably
determines that disclosure is required in obtaining any consents required from
third parties, to collect any of Seller's retained amounts receivable or to
satisfy any third party claims for which Seller, EI or FGC remains liable;
provided, that prior to disclosing any information pursuant to clauses (ii) or
(iii) above, Seller, EI or FGC, shall, if possible, give prior written notice
thereof to Buyer and Orion and provide Buyer and Orion with the opportunity to
contest such disclosure.
(b) Buyer and Orion recognize and acknowledge that they have in
the past, currently have, and in the future may possibly have, access to certain
confidential information relating to the Business, such as lists of customers,
operational policies, and pricing and cost policies that are valuable, special
and unique assets of the Business. Buyer and Orion agree that, prior to the
Closing, they will not disclose confidential information with respect to the
Business to any person or entity, for any purpose or reason whatsoever (except
to authorized representatives of Buyer and Orion, and to counsel and other
advisers, provided that such advisors (other than counsel) agree to the
confidentiality provisions of this Section 12(b)), unless (i) such information
becomes known to the public generally through no fault of Buyer and Orion, (ii)
disclosure is required by law or the order of any governmental authority under
color of law or (iii) Buyer and Orion reasonably believe that such disclosure is
required in connection with the prosecution of a lawsuit against Seller, EI or
FGC, or the defense of a lawsuit against Buyer and Orion, provided, that prior
to disclosing any information pursuant to clauses (ii) or (iii) above, Buyer and
Orion, shall, if possible, give prior written notice thereof to Seller, EI and
FGC and provide Seller, EI and FGC with the opportunity to contest such
disclosure.
13. Expenses. Seller, EI and FGC, on the one hand, and Buyer and
Orion, on the other hand, shall each pay their own expenses relating to the
transactions
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contemplated by this Agreement, including fees and disbursements of its counsel,
accountants and financial advisors; provided, however, that Orion agrees to
reimburse Seller for Ten Thousand Dollars ($10,000) of its legal fees. Any
sales, transfer, use, excise or other taxes that shall become due and payable as
a result of the transactions between the parties hereto shall be the obligation
and responsibility solely of Buyer.
14. Notices. Any notice or communication hereunder shall be deemed
to have been duly given if in writing and if transmitted by hand-delivery with
receipt therefore, or by certified or registered mail, postage prepaid, return
receipt requested, or by Federal Express or other delivery service with
guaranteed next-day delivery with receipt therefore, addressed to the parties at
their following respective addresses, or at such other addresses as may be
designated in writing:
(a) if to Seller, EI or FGC: erbia Network, Inc.
c/o 0000 Xxxxx Xxx
XxXxxx, XX 00000
(b) if to Buyer or Globalinx, Inc.
Orion: c/o Orion Technologies, Inc.
0000 00xx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Notices shall be effective when received; provided that if any notice sent by
certified mail is properly returned undeliverable, said notice shall be
effective when mailed. Any party may change the address to which notices are to
be delivered hereunder by giving written notice to the other parties as provided
in this Section 14.
15. Further Assurances. The parties agree (a) to furnish upon request
to each other such further information, (b) to execute and deliver to each other
such other documents and (c) to do such other acts and things, all as another
party may reasonably request for the purpose of carrying out the intent of this
Agreement and the documents referred to herein.
16. Governing Law. This Agreement shall be construed under and
governed by the laws of the Commonwealth of Virginia without giving effect to
any choice or conflicts of law provision, rule or principle, whether of the
Commonwealth of Virginia or otherwise.
17. Survival. The representations and warranties of Seller, EI and FGC
set forth in Section 4 hereof and the representations and warranties of Buyer
and Orion set forth in Section 5 hereof shall survive the Closing.
18. Severability. If any provision or part of any provision of this
Agreement shall for any reason be held invalid, illegal or unenforceable in any
respect, such
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invalidity, illegality or unenforceability shall not affect any other provision
or any other part of a provision of this Agreement, and this Agreement shall be
construed as if such invalid, illegal or unenforceable provision or part of a
provision, as the case may be, had never been contained herein.
19. Construction.
(a) The captions herein are for reference purposes only and in
no way define or limit the scope or content of this Agreement or in any way
affect the interpretation of its provisions.
(b) This Agreement may not be amended or modified, nor may any
provision hereof be waived, except pursuant to an instrument in writing signed
by all of the parties hereto, or, in the case of a waiver, pursuant to an
instrument in writing signed by the party to whom or to which the subject
obligation was owed. No waiver of any of the provisions of this Agreement shall
be deemed or shall constitute a waiver of any other provision of this Agreement,
whether or not similar, nor shall such waiver constitute a continuing waiver
unless otherwise expressly so provided in writing.
20. Integration. This Agreement, and the other documents contemplated
hereby, constitute the final written expression of all of the agreements between
the parties regarding the subject matter hereof and is a complete and exclusive
statement of those terms, and all prior expressions thereof are hereby revoked.
This Agreement, and the other documents contemplated hereby, supersede all
understandings and negotiations concerning the matters specified herein and any
representations, promises, warranties or statements made by any party that
differ in any way from the terms of this Agreement and the other documents
contemplated hereby shall be given no force or effect. The parties specifically
represent, each to the other, that there are no additional or supplemental
agreements between them related in any way to the matters herein contained
unless specifically included or referred to herein.
21. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized officers this 20th day of June, 2001.
ERBIA NETWORK, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: President
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ERBIA, INC.
By: /s/ XXXXXXX X. XXXXX
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Name: Xxxxxxx X. Xxxxx
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Title: President
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FGC, INC.
By: /s/ XXXX XXXXXX
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Name: Xxxx Xxxxxx
----------------------------
Title: President
---------------------------
GLOBALINX, INC.
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: President
---------------------------
ORION TECHNOLOGIES, INC.
By: /s/ XXXXX X. X. XXXXXXX
------------------------------
Name: Xxxxx X. X. XxXxxxx
----------------------------
Title: Treasurer
---------------------------
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